Thropp v. Public Service Electric Co.

The opinion of the court was delivered by Gummere, Chief-Justice. The complainants by their bill sought to obtain a mandatory injunction compelling the defendant corporation to remove certain electric light poles which it had erected in a public highway, in Hamilton township, Mercer county, in" front of the complainants’ land, the ultimate title to that part of the highway in which the poles were erected being in the complainants. At the time of the erection of the poles the defendant company was under a contract with the township authorities to furnish light for the highways thereof; and for the purpose of such public lighting it was entitled to erect poles, fix cross-arms upon them, and string wires thereon, without obtaining the consent of the abutting owners along the line of its route. General Township act, § 67; Comp. Stat. p. 5600; Andreas v. Gas and Electric Co., 61 N. J. Eq. 69. The charge in tire bill is that the defendant company, under color of the authority so conferred, erected poles much larger in size, both in diameter and height, than were required for the purpose of publicly lighting the highways of the township, in order to use them, not only for that purpose, but also for the carrying of wires thereon for private'lighting, and for a high-tension transmission current; that the complainants have not consented to the erection of poles in front of their property for any such purpose, and that without such consent the erection of poles of the character described' is a direct invasion of their property rights. Upon final hearing it was adjudged that the poles referred to were much larger than the defendant company was legally enth [146] tied to erect and maintain in front of the complainants’ premises, and a decree was entered directing the defendant to remove them from in front of the complainants’ property within thirty days after service of a copy thereof upon it. Prom this decree the defendant appeals. From the foregoing recital it appeal’s that the ground of action set up by the complainants in their bill is the tortious entry upon and occupation by the defendant of land, the legal title to which is in them; and that the relief they seek is the ejection of the defendant therefrom. Before considering the meritorious questions involved in this litigation, it is necessary to determine whether the case presented comes within the cognizance of a court of equity; for, unless it does, the decree’ appealed from is without legal force. That, on the one hand, the right of the defendant to occupy, by legislative authority, land in a public highway the title to which is in the complainants (if such right exists); and that, conversely, the right of the complainants to oust the defendant from the possession of this land, if the defendant is in the wrongful occupation thereof, are, each of them; essentially, legal, not equitable, in character, cannot be doubted. Mayor, &c., of Jersey City v. Gardner, 33 N. J. Eq. 622; French v. Robb, 67 N. J. Law 260. As a general proposition it may be said that, in this state, where the dispute between the parties is over a purely legal right in land, the proper, and, indeed, the only, tribunal in which to settle it, is a court of law. Borough of South Amboy v. Pennsylvania Railroad Co., 77 N. J. Eq. 249 ; Mason v. Ross, 77 N. J. Eq. 527; Imperial Realty Co. v. West Jersey and Seashore Railroad Co., 79 N. J. Eq. 168. It is true that this rule is not universal; but the occasions in which it is not applicable are rare. The various classes of cases in which the power of equity to entertain jurisdiction over such disputes exists are specified by this court in Hart v. Leonard, 42 N. J. Eq. 416. It is not necessary to recite them here. A reference to the opinion in that case will show that the facts of the present case do not bring it within any of the excepted classes. Another principle to be remembered in considering cases like the present is that courts of equity do not ordinarily entertain [147] jurisdiction of causes where there exists at law a remedy plain, adequate and complete to redress the wrong complained of. This rule, as was said by this court, in Mayor, &c., of Jersey City v. Gardner, supra, “stands paramount among those which serve to define the jurisdiction between courts of law and courts of equity.” That the complainants in the present case have a complete and adequate remedy at law seems to us to be beyond question. The wrong complained of is quite similar in its legal essence to that set up by the complainant in Mayor, &c., of Jersey City v. Gardner, supra. In that case the complainant filed his bill to restrain the municipality from wrongfully using lands belonging to him which had been condemned for a public highway, until compensation had been made to him for its taking. We pointed out, in our opinion, that “for such a wrong the action of ejectment generally lies, the result of such remedy being to give the plaintiff, if successful, the possession of his lands, and, under present procedure, damages for their detention;” and declared that “this gives as ample and complete redress as is within the power of any court to afford the suitor.” That such an action will lie against a corporation which has wrongfully erected in a public highway poles, cross-arms and wires, without the consent of the owner of the soil, was specifically decided by this court in French v. Robb, supra. The assumption of jurisdiction by the court of chancery, being in disregard of these fundamental rules, which “define the boundary of jurisdiction between courts of law and courts of equity,” the decree under review must be reversed, and the court of chancery directed to transfer the cause with the record thereof, and all papers filed therein, either to the circuit court of the county of Mercer, or to the supreme court, for hearing and determination, pursuant to the provisions of “the Transfer of Causes act (1912).” P. L. p. 417.